Expedition, Reconsideration of EEA applications and EEA Appeal Rights under the 2016 Regulations

Following an adverse decision being made by the Home Office, an affected person may be torn between re-applying for residence documentation, requesting reconsideration or appealing an EEA decision.  In practice however, requesting that the Home Office re-consider a decision made on deportation grounds, rather than submit an appeal would be pure folly: the Home Office are very likely to maintain the same negative decision and most importantly, the failure to appeal would likely leave the EEA national or their family member subject to deportation without any other viable alternative remedy and liable to imminent removal.

Having regard to the considerable amount of time  that the Tribunal  may take to list appeals for hearings  and the potential  stress itself of pursuing  appeal proceedings, where it seems that there is a reasonably good chance  of persuading the Home  Office to  change their mind, re-applying  or seeking a  reconsideration of a refusal to issue a residence documentation, may be more appropriate.

In relation to appeals, the statutory provisions  of the  2016 EEA Regulations require familiarity with the following,  among other issues:

  • the meaning of an “EEA decision”

  • who can appeal

  • certification provisions applicable to EEA appeals

  • when an appeal is to be treated as pending, finally determined or abandoned

  • the effect of appeals to the First-tier Tribunal or Upper Tribunal

  • the Regulation 32(6) 30 day “grace period” to leave the UK

  • re-entry procedure to present appeal in person

  • considerations of public policy, public security and the fundamental interests of society that a court or tribunal must have regard to.

(1). EXPEDITION REQUESTS

Applicants may contact the Home Office directly, or may ask their MP or a minister to make enquiries on their behalf.

How to request expedition:

When submitting a request for a case to be expedited, the applicant must include information details such as their full name; date of birth; date of application; Royal Mail Recorded Delivery number (if applicable); method of payment used when making the application (card, cheque etc); case ID or Home Office reference (if known) and date of planned removal (if applicable).

The application cannot be considered until the applicant has enrolled their biometrics.

Exceptional circumstances justifying expedition:

There may be exceptional, compelling circumstances that would merit an application being expedited. Examples of grounds which could be considered exceptional, compelling circumstances include:

  • family emergencies such as bereavement or serious illness

  • the need to travel for essential medical treatment overseas

In all cases, documentary evidence of the exceptional, compelling circumstances must be provided.

Family celebrations such as weddings and holidays are not generally considered exceptional, compelling ‘family emergencies’.

Other Considerations

In relation to an applicant who is detained awaiting removal, home office policy is that requests must be considered on the basis of the evidence submitted.

It will usually be appropriate to expedite a case where the applicant is a non-EEA national who claims to be the family member of an EEA national exercising treaty rights, and the removal decision was not made under the 2016 regulations, for example if the decision was made under section 10 of the Nationality, Immigration and Asylum Act 1999.

The Home Office’s current position is that it will not normally be necessary to expedite an application where the removal decision was made under the 2016 EEA regulations. This is because in line with regulation 24(2), a removal decision made under the 2016 regulations cancels any outstanding application for EEA documentation. Therefore the application does not need to be considered.

(2). RECONSIDERATION REQUESTS

Where appropriate, the Home Office can reconsider a decision to refuse residence  documentation

Where reconsideration of a decision would be appropriate:

Reconsideration would be appropriate when:

  • the applicant or representative raises a point of law – this could include accusations that the wrong regulation has been applied to the refusal

  • the applicant or representative raises a challenge to Home Office policy – this could include where the wrong policy has been applied or the policy itself is alleged to be unlawful

  • the applicant or representative has rightly drawn attention to the fact that evidence alleged not to have been provided in support of the application was actually with the Home Office at the relevant time

  • new and compelling evidence was submitted before the refusal decision was dispatched that would, if it had been considered at the time, have led to documentation being issued.

Where reconsideration would not be appropriate:

Reconsideration would not be appropriate when:

  • the applicant or representative requests a reconsideration without putting forward any substantive arguments

  • the applicant or representative submits documentary evidence after the refusal decision has been issued

  • the applicant or representative asks for reconsideration on a different basis than the original application (for example under Article 8 of the European Convention on Human Rights)

If an appeal has already been lodged:

It is home office policy that, where the applicant has already lodged an appeal but they have asked for the decision to be reconsidered, this must be refused and the applicant advised to pursue their appeal through the proper channels.

(3). APPEAL RIGHTS AND THE 2016 EEA REGULATIONS

The definition of “EEA decision” in regulation 2(1) of the 2016 Regulations largely replicates the definition in the 2006 Regulations, however, it makes it clear that an EEA decision does not include a decision to refuse to issue to an extended family member of an EEA national an EEA family permit, registration certificate or residence card as found in the judgment of the Upper Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC).

Regulation 33 of the 2016 Regulations replicates regulation 24AA of the 2006 Regulations. An appeal brought from within the UK under the 2016 Regulations by a person, irrespective of nationality, against a deportation decision will not prevent the Secretary of State from giving, or executing removal directions. Paragraph 2 of Schedule 2 to the 2016 Regulations has the effect that where a deportation decision is certified under regulation 33 of the 2016 Regulations, this is replicated where an appeal could also be brought under the Nationality, Immigration and Asylum Act 2002.

Regulation 42(1) of the 2016 Regulations largely replicates regulation 29AA(1) of the 2006 Regulations. It has been amended slightly to make it clear that a person can apply for temporary admission where, following a removal decision, they leave the UK of their own volition. This is stated to ensure that the provision better reflects Article 31(4) of the Directive.

Part 4 of the 2016 Regulations (refusal of admission and removal etc.) provides for the exclusion and removal of EEA nationals and their family members. It is based on the approach adopted by Part 4 of the 2006 Regulations with the addition of a requirement in regulation 27(8) for a court or tribunal to have regard to the considerations set out in Schedule 1 when they consider whether the requirements of regulation 27 are met.  The Home Office emphasises that Paragraph 1 of Schedule 1 reflects the margin of appreciation enjoyed by Member States to determine their own requirements of public policy and public security, tailored to their own purposes, from time to time (Case 41/74 Van Duyn ECLI:EU:C:1974:133).

Paragraph 2 onwards of Schedule 1 defines, in terms specific to the UK, considerations applying to a court or tribunal’s consideration of whether there are grounds of public policy or public security in an individual case, or whether one of the fundamental interests of society (as defined in paragraph 8 of Schedule 1) are affected.

APPEAL RIGHTS- RELEVANT PROVISIONS WITHIN THE 2016 REGULATIONS

  • Regulation 2- General interpretation:-

(1) In these Regulations

…………

“EEA decision” means a decision under these Regulations that concerns—

(a)a person’s entitlement to be admitted to the United Kingdom;

(b)a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision that an application for the above documentation is invalid);

(c)a person’s removal from the United Kingdom; or

(d)the cancellation, under regulation 25, of a person’s right to reside in the United Kingdom, but does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member), a decision to reject an application under regulation 26(4) (misuse of a right to reside: material change of circumstances), or any decisions under regulation 33 (human rights considerations and interim orders to suspend removal) or 41 (temporary admission to submit case in person);

  • Regulation 36 – Appeal rights:-

“(1) The subject of an EEA decision may appeal against that decision under these Regulations.

(2) If a person claims to be an EEA national, that person may not appeal under these Regulations without producing a valid national identity card or passport issued by an EEA State.

(3) If a person claims to be in a durable relationship with an EEA national, that person may not appeal under these Regulations without producing—

(a)a valid passport; and

(b)either—

(i)an EEA family permit; or

(ii)sufficient evidence to satisfy the Secretary of State that the person is in a relationship with the EEA national.

(4) If a person to whom paragraph (2) does not apply claims to be the family member of an EEA national under regulation 7, the relative of an EEA national who is an extended family member under regulation 8, or a family member who has retained the right of residence under regulation 10, that person may not appeal under these Regulations without producing—

(a)a valid passport; and

(b)either—

(i)an EEA family permit

(ii)a qualifying EEA State residence card;

(iii)in the case of a person claiming to be the family member of an EEA national, proof that the criteria in regulation 7 are met; or

(iv)in the case of a person claiming to be a family member who has retained the right of residence, proof that the criteria in regulation 10 are met.

(5) If a person (“P”) claims to have a derivative right to reside, P may not appeal under these Regulations unless P produces a valid national identity card issued by an EEA State or a valid passport, and either—

(a)an EEA family permit; or

(b)where P claims to have a derivative right to reside as a result of—

(i)regulation 16(2), proof that P is a direct relative or legal guardian of an EEA national who is under the age of 18;

(ii)regulation 16(3), proof that P is the child of an EEA national;

(iii)regulation 16(4), proof that P is a direct relative or legal guardian of the child of an EEA national;

(iv)regulation 16(5), proof that P is a direct relative or legal guardian of a British citizen;

(v)regulation 16(6), proof that P is under the age of 18 and is a dependant of a person satisfying the criteria in paragraph (i), (iii) or (iv).

(6) If a person claims to be entitled to a right to reside under regulation 9 (family members of British citizens), that person may not appeal without producing a valid passport and either—

(a)an EEA family permit; or

(b)a qualifying EEA State residence card; and

(i)proof that the criteria to be a family member of the British citizen are met; and

(ii)proof that the British citizen is residing, or did reside, in another EEA State as a worker, self-employed person, self-sufficient person or student.

(7) The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (8) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act.

(8) A person may not bring an appeal under these Regulations on a ground certified under paragraph (7) or rely on such a ground in an appeal brought under these Regulations.

(9) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the First-tier Tribunal.

(10) The provisions of, or made under, the 2002 Act referred to in Schedule 2 have effect for the purposes of an appeal under these Regulations to the First-tier Tribunal in accordance with that Schedule.

(11) Nothing in this Part prevents a person who has a right of appeal under this regulation from appealing to the First-tier Tribunal under section 82(1) of the 2002 Act (right of appeal to the Tribunal), or, where relevant, to the Commission pursuant to section 2 of the 1997 Act (jurisdiction of the Commission: appeals)(2), provided the criteria for bringing such an appeal under those Acts are met”.

  • Regulation 42- Alternative evidence of identity and nationality:-

(1) Subject to paragraph (2), where a provision of these Regulations requires a person to hold or produce a valid national identity card issued by an EEA State or a valid passport, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

(2) This regulation does not apply to regulation 11”.

  • Regulation – 35 Interpretation of Part 6:-

(1) In this Part—

“the 1997 Act” means the Special Immigration Appeals Commission Act 1997(1);

“Commission” has the same meaning as in the 1997 Act.

(2) For the purposes of this Part, and subject to paragraphs (3) and (4), an appeal is to be treated as pending during the period when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.

(3) An appeal is not to be treated as finally determined while a further appeal may be brought; and, if such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned.

(4) A pending appeal is not to be treated as abandoned solely because the appellant leaves the United Kingdom”.

  • Regulation- 37 Out of country appeals:-

(1) Subject to paragraph (2), a person may not appeal under regulation 36 whilst in the United Kingdom against an EEA decision—

(a)to refuse to admit that person to the United Kingdom;

(b)to revoke that person’s admission to the United Kingdom;

(c)to make an exclusion order against that person;

(d)to refuse to revoke a deportation or exclusion order made against the person;

(e)to refuse to issue the person with an EEA family permit;

(f)to revoke, or to refuse to issue or renew any document under these Regulations where that decision is taken at a time when the person is outside the United Kingdom; or

(g)to remove the person from the United Kingdom following entry to the United Kingdom in breach of a deportation or exclusion order, or in circumstances where that person was not entitled to be admitted pursuant to regulation 23(1), (2), (3) or (4).

(2) Sub-paragraphs (a) to (c) of paragraph (1) do not apply where the person is in the United Kingdom and—

(a)the person holds a valid EEA family permit, registration certificate, residence card, derivative residence card, document certifying permanent residence, permanent residence card or qualifying EEA State residence card on arrival in the United Kingdom or the person can otherwise prove that the person is resident in the United Kingdom; or

(b)the person is deemed not to have been admitted to the United Kingdom under regulation 29(3) but at the date on which notice of the decision to refuse admission is given the person has been in the United Kingdom for at least 3 months”.

  • Regulation 40 – Effect of appeals to the First-tier Tribunal or Upper Tribunal:-

“(1) This regulation applies to appeals under these Regulations made to the First-tier Tribunal or Upper Tribunal.

(2) If a person in the United Kingdom appeals against an EEA decision refusing admission to the United Kingdom (other than a decision under regulation 23(1), (2), or (5)), any directions for that person’s removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, while the appeal is pending.

(3) If a person in the United Kingdom appeals against an EEA decision concerning that person’s removal from the United Kingdom (other than a decision under regulation 23(6)(b)), any directions for removal given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act are to have no effect, except in so far as they have already been carried out, while the appeal is pending.

(4) The provisions of Part 1 of Schedule 2, or as the case may be, Schedule 3 to the 1971 Act concerning detention and persons liable to detention, apply to a person appealing against a refusal of admission, a decision to revoke admission, or a removal decision as if there were in force directions for that person’s removal from the United Kingdom, except that the person may not be detained on board a ship or aircraft so as to compel that person to leave the United Kingdom while the appeal is pending.

(5) In paragraph (4), the words “except that the person” to the end do not apply to an EEA decision to which regulation 33 applies (human rights considerations and interim orders to suspend removal).

(6) In calculating the period of two months limited by paragraph 8(2) of Schedule 2 to the 1971 Act for—

(a)the giving of directions under that paragraph for the removal of a person from the United Kingdom; and

(b)the giving of a notice of intention to give such directions,

any period during which there is an appeal pending by that person is to be disregarded (except in cases where the EEA decision was taken under regulation 23(1), (2), (5) and (6)(b).

(7) Paragraph 29 of Schedule 2 to the 1971 Act (grant of bail pending appeal)(1) applies to a person who has an appeal pending under these Regulations as it applies to a person who has an appeal pending under section 82(1) of the 2002 Act”.

  • Regulation 33 -Human rights considerations and interim orders to suspend removal:-

(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person (“P”) to whom regulation 32(3) applies, in circumstances where—

(a)P has not appealed against the EEA decision to which regulation 32(3) applies, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or

(b)P has so appealed but the appeal has not been finally determined.

(2) The Secretary of State may only give directions for P’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P’s appeal, would not be unlawful under section 6 of the Human Rights Act 1998(1) (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

(4) If P applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been taken, except—

(a)where the removal decision is based on a previous judicial decision;

(b)where P has had previous access to judicial review; or

(c)where the removal decision is based on imperative grounds of public security.

(5) In this regulation, “finally determined” has the same meaning as in Part 6”.

  • Regulation 32- Person subject to removal:-

(1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 23(6)(b), that person may be detained under the authority of the Secretary of State pending a decision whether or not to remove the person under that regulation, and paragraphs 17 to 18A of Schedule 2 to the 1971 Act apply in relation to the detention of such a person as those paragraphs apply in relation to a person who may be detained under paragraph 16 of that Schedule.

(2) Where a decision is taken to remove a person under regulation 23(6)(a) or (c), the person is to be treated as if the person were a person to whom section 10(1) of the 1999 Act(1) applies, and section 10 of that Act (removal of certain persons unlawfully in the United Kingdom) is to apply accordingly.

(3) Where a decision is taken to remove a person under regulation 23(6)(b), the person is to be treated as if the person were a person to whom section 3(5)(a) of the 1971 Act(2) (liability to deportation) applies, and section 5 of that Act(3) (procedure for deportation) and Schedule 3 to that Act(4) (supplementary provision as to deportation) are to apply accordingly.

(4) A person who enters the United Kingdom in breach of a deportation or exclusion order, or in circumstances where that person was not entitled to be admitted under regulation 23(1) or (3), is removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule apply accordingly.

(5) Where a deportation order is made against a person but the person is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State may only take action to remove the person under the order at the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, the Secretary of State considers that the removal continues to be justified on the grounds of public policy, public security or public health.

(6) A person to whom this regulation applies must be allowed one month to leave the United Kingdom, beginning on the date on which the decision to remove is communicated before being removed because of that decision except—

(a)in duly substantiated cases of urgency;

(b)where the person is detained pursuant to the sentence or order of any court;

(c)where the person is a person to whom paragraph (4) applies.

(7) Paragraph (6) does not apply where a decision has been taken under regulation 23(6) on the basis that the relevant person—

(a)has ceased to have a derivative right to reside; or

(b)is a person who would have had a derivative right to reside but for the effect of a decision to remove under regulation 23(6)(b)”.

  • Regulation 41 – Temporary admission to submit case in person:-

“(1) This regulation applies where—

(a)a person (“P”) is subject to a decision to remove made under regulation 23(6)(b);

(b)P has appealed against the decision referred to in sub-paragraph (a);

(c)a date for P’s appeal has been set by the First-tier Tribunal or Upper Tribunal;

(d)P wants to make submissions before the First-tier Tribunal or Upper Tribunal in person; and

(e)P is outside the United Kingdom.

(2) P may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act, as applied by this regulation) to the United Kingdom in order to make submissions in person.

(3) The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security.

(4) When determining when P is entitled to be given permission, and the duration of P’s temporary admission should permission be granted, the Secretary of State must have regard to the dates upon which P will be required to make submissions in person.

(5) Where—

(a)P is temporarily admitted to the United Kingdom pursuant to this regulation;

(b)a hearing of P’s appeal has taken place; and

(c)the appeal is not finally determined,

P may be removed from the United Kingdom pending the remaining stages of the appeal (but P may apply to return to the United Kingdom to make submissions in person during the remaining stages of the appeal in accordance with this regulation).

(6) Where the Secretary of State grants P permission to be temporarily admitted to the United Kingdom under this regulation, upon such admission P is to be treated as if P were a person refused leave to enter under the 1971 Act for the purposes of paragraphs 8, 10, 10A, 11, 16 to 18A and 21 to 24 of Schedule 2 to the 1971 Act.

(7) Where Schedule 2 to the 1971 Act so applies, it has effect as if—

(a)the reference in paragraph 8(1) to leave to enter were a reference to admission to the United Kingdom under these Regulations; and

(b)the reference in paragraph 16(1) to detention pending a decision regarding leave to enter or remain in the United Kingdom were to detention pending submission of P’s case in person in accordance with this regulation.

(8) P is deemed not to have been admitted to the United Kingdom during any time during which P is temporarily admitted pursuant to this regulation”.

  • Regulation 38 -Appeals to the Commission:-

(1) An appeal against an EEA decision lies to the Commission where paragraph (2) or (4) applies.

(2) This paragraph applies if the Secretary of State certifies that the EEA decision was taken—

(a)by the Secretary of State wholly or partly on a ground listed in paragraph (3); or

(b)in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on a ground listed in paragraph (3).

(3) The ground mentioned in paragraph (2) are that the person’s exclusion or removal from the United Kingdom is—

(a)in the interests of national security; or

(b)in the interests of the relationship between the United Kingdom and another country.

(4) This paragraph applies if the Secretary of State certifies that the EEA decision was taken wholly or partly in reliance on information which the Secretary of State considers must not be made public—

(a)in the interests of national security;

(b)in the interests of the relationship between the United Kingdom and another country; or

(c)otherwise in the public interest.

(5) In paragraphs (2) and (4) the reference to the Secretary of State is a reference to the Secretary of State acting in person.

(6) Where a certificate is issued under paragraph (2) or (4) in respect of a pending appeal to the First-tier Tribunal or Upper Tribunal the appeal must lapse.

(7) An appeal against an EEA decision lies to the Commission where an appeal lapses by virtue of paragraph (6).

(8) The 1997 Act applies to an appeal to the Commission under this regulation as it applies to an appeal under section 2 of that Act.

(9) Where the 1997 Act applies to an appeal to the Commission under this regulation, section 2(2) of that Act is to be treated as though it applies the 2002 Act to that appeal in the form modified by Schedule 2 to these Regulations”.

  • Regulation 39- National Security: EEA Decisions:-

(1) Section 97A of the 2002 Act(1) applies to an appeal against an EEA decision where the Secretary of State has certified under regulation 38(2) or (4) that the EEA decision was taken in the interests of national security.

(2) Where section 97A so applies, it has effect as if—

(a)the references in that section to a deportation order were to an EEA decision;

(b)subsections (1), (1A), (2)(b) and (4) were omitted;

(c)the reference in subsection (2)(a) to section 79 were a reference to regulations 37(2) and 40 of these Regulations; and

(d)in subsection (2A) for sub-paragraphs (a) and (b), “against an EEA decision” were substituted”.

  • Regulation 23 -Exclusion and removal from the United Kingdom:-

“(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if a refusal to admit that person is justified on grounds of public policy, public security or public health in accordance with regulation 27.

(2) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if that person is subject to a deportation or exclusion order, except where the person is temporarily admitted pursuant to regulation 41.

(3) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if the Secretary of State considers there to be reasonable grounds to suspect that the person’s admission would lead to the misuse of a right to reside under regulation 26(1).

(4) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of arrival—

(a)that person is accompanying the EEA national or joining the EEA national in the United Kingdom; and

(b)the EEA national has a right to reside.

(5) If the Secretary of State considers that the exclusion of the EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 27 the Secretary of State may make an order prohibiting that person from entering the United Kingdom.

(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—

(a)that person does not have or ceases to have a right to reside under these Regulations;

(b)the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or

(c)the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).

(7) A person must not be removed under paragraph (6)—

(a)as the automatic consequence of having recourse to the social assistance system of the United Kingdom; or

(b)if that person has leave to remain in the United Kingdom under the 1971 Act unless that person’s removal is justified on the grounds of public policy, public security or public health in accordance with regulation 27.

(8) A decision under paragraph (6)(b) must state that upon execution of any deportation order arising from that decision, the person against whom the order was made is prohibited from entering the United Kingdom—

(a)until the order is revoked; or

(b)for the period specified in the order.

(9) A decision taken under paragraph (6)(b) or (c) has the effect of terminating any right to reside otherwise enjoyed by the individual concerned”.

  • Regulation 27 – Decisions taken on grounds of public policy, public security and public health:-

“(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a)has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).

(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—

(a)the decision must comply with the principle of proportionality;

(b)the decision must be based exclusively on the personal conduct of the person concerned;

(c)the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;

(d)matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)a person’s previous criminal convictions do not in themselves justify the decision;

(f)the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.

(7) In the case of a relevant decision taken on grounds of public health—

(a)a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010(2); or

(b)if the person concerned is in the United Kingdom, any disease occurring after the three month period beginning on the date on which the person arrived in the United Kingdom,

does not constitute grounds for the decision.

(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.)”.

  • Schedule 1 Considerations of Public Policy, Public Society and the fundamental interests of society etc:-

Considerations of public policy and public security

  1. The EU Treaties do not impose a uniform scale of public policy or public security values: member States enjoy considerable discretion, acting within the parameters set by the EU Treaties, applied where relevant by the EEA agreement, to define their own standards of public policy and public security, for purposes tailored to their individual contexts, from time to time.

Application of paragraph 1 to the United Kingdom

  1. 2.An EEA national or the family member of an EEA national having extensive familial and societal links with persons of the same nationality or language does not amount to integration in the United Kingdom; a significant degree of wider cultural and societal integration must be present before a person may be regarded as integrated in the United Kingdom.

  2. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.

  3. Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as—

(a)the commission of a criminal offence;

(b)an act otherwise affecting the fundamental interests of society;

(c)the EEA national or family member of an EEA national was in custody.

  1. The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate.

  2. It is consistent with public policy and public security requirements in the United Kingdom that EEA decisions may be taken in order to refuse, terminate or withdraw any right otherwise conferred by these Regulations in the case of abuse of rights or fraud, including—

(a)entering, attempting to enter or assisting another person to enter or to attempt to enter, a marriage, civil partnership or durable partnership of convenience; or

(b)fraudulently obtaining or attempting to obtain, or assisting another to obtain or to attempt to obtain, a right to reside under these Regulations.

The fundamental interests of society

  1. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include—

(a)preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;

(b)maintaining public order;

(c)preventing social harm;

(d)preventing the evasion of taxes and duties;

(e)protecting public services;

(f)excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;

(g)tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);

(h)combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27);

(i)protecting the rights and freedoms of others, particularly from exploitation and trafficking;

(j)protecting the public;

(k)acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child);

(l)countering terrorism and extremism and protecting shared values”.

  • Schedule 2- Appeal to the First Tier Tribunal:-

“1.  The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of the 2002 Act (right of appeal to the Tribunal)—

section 84 (grounds of appeal), as though the sole permitted grounds of appeal were that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom (“an EU ground of appeal”);

section 85 (matters to be considered), as though—

(a) the references to a statement under section 120 of the 2002 Act include, but are not limited to, a statement under that section as applied by paragraph 2; and

(b)a “matter” in subsection (2) and a “new matter” in subsection (6) include a ground of appeal of a kind listed in section 84 of the 2002 Act and an EU ground of appeal;

section 86 (determination of appeal);

section 105 and any regulations made under that section; and

section 106 and any rules made pursuant to that section.

2.—(1) Section 92(3) of the 2002 Act has effect as though an additional basis upon which an appeal under section 82(1)(b) of that Act (human rights claim appeal) must be brought from outside the United Kingdom were that—

(a)the claim to which that appeal relates arises from an EEA decision or the consequences of an EEA decision; and

(b)the removal of that person from the United Kingdom has been certified under regulation 33 (human rights considerations and interim orders to suspend removal).

(2) Section 120 of the 2002 Act applies to a person (“P”) if an EEA decision has been taken or may be taken in respect of P and, accordingly, the Secretary of State or an immigration officer may by notice require a statement from P under subsection (2) of that section, and that notice has effect for the purpose of section 96(2) of the 2002 Act.

(3) Where section 120 of the 2002 Act so applies, it has effect as though—

(a)subsection (3) also provides that a statement under subsection (2) need not repeat reasons or grounds relating to the EEA decision under challenge previously advanced by P;

(b)subsection (5) also applies where P does not have a right to reside.

(4) For the purposes of an appeal brought under section 82(1) of the 2002 Act, subsections (2) and (6)(a) of section 85 (matters to be considered) have effect as though section 84 included a ground of appeal that the decision appealed against breaches the appellant’s right under the EU Treaties in respect of entry into or residence in the United Kingdom.

3.Tribunal Procedure Rules made under section 22 of the Tribunals, Courts and Enforcement Act 2007 have effect in relation to appeals under these Regulations”.

  • Schedule 6 – Transitional Provisions:-

“……………….

Removal decisions, deportation orders and exclusion orders under the 2006 Regulations

5.—(1) A decision to remove a person under regulation 19(3)(a), (b) or (c) of the 2006 Regulations must, upon the coming into force of Part 4 of these Regulations in its entirety, be treated as a decision to remove that person under regulation 23(6) (a), (b) or (c) of these Regulations, as the case may be.

(2) A deportation order made under regulation 24(3) of the 2006 Regulations must be treated as a deportation order made under regulation 32(3) of these Regulations.

(3) Until the coming into force of Part 4 in its entirety, a deportation order to which sub-paragraph (2) applies has effect until revoked by the Secretary of State.

(4) An exclusion order made under regulation 19(1B) of the 2006 Regulations must, upon the coming into force of Part 4 in its entirety, be treated as though having been made under regulation 23(5) of these Regulations.

(5) A person removed under regulation 19(3)(a) of the 2006 Regulations before 1st February 2017 is to be taken into account for the purposes of regulation 26(2).

(6) Where sub-paragraph (5) applies to a person, regulation 26 has effect as though the references to “12” were to “36”.

Certification under regulations 24AA and 29AA of the 2006 Regulations

6.—(1) Where the Secretary of State certified under regulation 24AA of the 2006 Regulations (human rights considerations and interim orders to suspend removal) that a person’s removal from the United Kingdom would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to the Human Rights Convention), the removal of that person is to be treated as though certified under regulation 33 of these Regulations.

(2) Where sub-paragraph (1) applies, certification treated as though given under regulation 33 does not amount to certification under that regulation for the purposes of paragraph 2(1)(b) of Schedule 2 to these Regulations (appeals to the First-tier Tribunal).

(3) Where the Secretary of State granted a person permission to be temporarily admitted to the United Kingdom to make submissions in person under regulation 29AA of the 2006 Regulations, that permission is to be treated as though given under regulation 41 of these Regulations.

(4) A person temporarily admitted to the United Kingdom in order to make submissions in person under regulation 29AA(6) of the 2006 Regulations is to be treated as though having been temporarily admitted under regulation 41(6) of these Regulations.

Appeals to the Commission

7.Where the Secretary of State certified an EEA decision under regulation 28(2) of the 2006 Regulations (appeals to the Special Immigration Appeals Commission) before 1st February 2017, that EEA decision is to be treated as though having been certified under regulation 38(2) of these Regulations”.

(4).RIGHTS OF APPEAL CLARIFIED

The Right of Appeal:

A person served with an EEA decision, who has a right of appeal, may appeal against that decision to the First-tier Tribunal (Regulation 36(1).

An appeal against an EEA decision can be lodged by an EEA national or an EEA family member having regard to Regulation 36 where they provide specified evidence.

EEA nationals:

Regulation 36(2) provides that  if a person claims to be an EEA national, that person may not appeal under the regulations without producing a valid national identity card or passport issued by an EEA State.

Family members:

Family members who come under regulation 7(1)(a), (b) and (c) of 2016 Regulations are often called ‘core ‘or ‘direct’ family members.

The following can be considered as direct family members:

  • spouse or civil partner

  • direct descendants of the EEA national or their spouse or civil partner who are: (i)under the age of 21 (ii)dependants of the EEA nationals or their spouse or civil partner

  • dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner

Direct family members have an automatic right of residence in the UK for as long as they remain the family member of that EEA national and that person is either:

  • entitled to reside in the UK for an initial period of three months

  • a qualified person

  • has a right of permanent residence

Refused family members can appeal against a decision to refuse to issue residence documentation if the conditions of regulation 36 are met.

Having regard to Regulating 36(4), if a person who is not an EEA national claims to be the family member of an EEA national under regulation 7, the relative of an EEA national who is an extended family member under regulation 8, or a family member who has retained the right of residence under regulation 10, that person may not appeal under the Regulations without producing—

  • a valid passport; and either—

  • an EEA family permit

  • a qualifying EEA State residence card;

  • (in the case of a person claiming to be the family member of an EEA national, proof that the criteria in regulation 7 are met; or

  • in the case of a person claiming to be a family member who has retained the right of residence, proof that the criteria in regulation 10 are met.

Derivative residence card applicants:

A person who does not qualify for a right of residence under Directive 2004/38/EC may qualify for another right of residence under European Union law. These are known as ‘derivative rights’ as they come from (are ‘derived’ from) other instruments of EU law, and not from the directive.

A person may qualify for a derivative right of residence in one of the following categories:

  • “Zambrano’ cases:-as the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA

  • “Chen’ cases:-as the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights

  • “Ibrahim and Teixeira’ cases either (i)as the primary carer of a child of an EEA national worker or former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK (ii)as the dependent child aged under 18 of a primary carer in one of the categories set out above, where requiring that dependent child to leave the UK would force the primary carer to leave the UK with them (iii)as the child of an EEA national worker or former worker where that child is in education in the UK

A person who is claiming a derivative right of residence in a category above must meet the relevant conditions set out in regulations 16  and  20.

Regulation 36(5) provides that if  a person  claims to have a derivative right to reside,  that person  may not appeal under the Regulations unless they  produce a valid national identity card issued by an EEA State or a valid passport, and either—

(a)an EEA family permit; or

(b)where the person claims to have a derivative right to reside as a result of:

(i)regulation 16(2), proof that they are a direct relative or legal guardian of an EEA national who is under the age of 18;

(ii)regulation 16(3), proof that the person  is the child of an EEA national;

(iii)regulation 16(4), proof that the person is a direct relative or legal guardian of the child of an EEA national;

(iv)regulation 16(5), proof that the person is a direct relative or legal guardian of a British citizen;

(v)regulation 16(6), proof that the person is under the age of 18 and is a dependant of a person satisfying the criteria in paragraph (i), (iii) or (iv).

Surinder Singh applicants:

The conditions to be met by a family member of a British citizen (“Surinder Singh’ cases) applying for a residence card in the UK are set out in regulation 9 of the 2016 EEA Regulations.

The applicant can appeal against a decision to refuse to issue a residence card if the conditions of regulation 36 are met.

Regulation 36(6) states that if a person claims to be entitled to a right to reside under regulation 9 (family members of British citizens), that person may not appeal without producing a valid passport and either—

(a)an EEA family permit; or

(b)a qualifying EEA State residence card; and

(i)proof that the criteria to be a family member of the British citizen are met; and

(ii)proof that the British citizen is residing, or did reside, in another EEA State as a worker, self-employed person, self-sufficient person or student.

Where there is a right of appeal, it is not suspensive of removal: Ahmed, R (on the application of) v SSHD (EEA / s.10 appeal rights: effect (IJR) [2015] UKUT 436 (IAC) (24 July 2015).

The consequences of a refused application is that the applicant will be liable to removal under section 10 of the Immigration and Asylum Act 1999, on the basis that they require leave to enter or remain in the UK but do not have it.

If and when removal is enforced, the applicant will be subject to a bar on entering the UK under the Immigration Rules for 10 years. This is in accordance with paragraph 320(7B) of the rules.

Family members who have retained a right of residence:

The 2016 regulations provide for certain family members of EEA nationals to keep their right of residence in the UK under regulation 10 when:

  • the EEA national, either: (i)dies – regulation 10(2), (ii)leaves the UK – regulation 10(3) (iii)divorces their spouse or dissolves their civil partnership – regulation 10(5)

  • the family member is the parent of a child who retains the right of residence – regulation 10(4)

The family member will retain the right to reside in these circumstances if they can satisfy the relevant conditions of regulation 10.

Regulation 36 provides a right of appeal to persons claiming to be a family member who has retained the right of residence where certain documentary requirements have been met.

Regulation 36(3) provides that if a person  claims to be in a durable relationship with an EEA national, that person may not appeal under these Regulations without producing a valid passport and either an EEA family permit or sufficient evidence to satisfy the Secretary of State that the person is in a relationship with the EEA national.

If the applicant has been issued a registration certificate or residence card because they satisfy the conditions of regulation 10, Home Office decision makers must revoke the document if they become aware that they have had a change in circumstances which means they no longer meet those conditions. The decision maker would revoke the document providing the applicant is not a qualified person in their own right and they do not qualify under any other part of the 2016 regulations. Regulation 36(4) of the regulations provides for a right of appeal against the revocation of a document on the basis of a retained right of residence provided the documentary requirements are met.

Extended family members:

Regulation 8 defines an extended family member as a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who is either:

  • A relative of an EEA national or their spouse or civil partner who is dependent on the EEA national or is a member of their household, and:(i)-is accompanying the EEA national to the UK or wishes to join them, or (ii) has joined them in the UK and continues to be dependent on them or to be a member of their household.

  • A relative of an EEA national or their spouse or civil partner who strictly requires the personal care of the EEA national or their spouse or civil partner due to serious health grounds.

  • A relative of an EEA national who would meet the requirements of the Immigration Rules for indefinite leave to remain (other than those relating to entry clearance) as a dependent relative of an EEA national as if the EEA national was a person present and settled in the UK.

  • The partner of an EEA national, other than a civil partner, who can prove they are in a durable relationship with the EEA national. (A durable relationship is an unmarried partnership which has normally subsisted (continued in existence) for two years or more).

The definition of “EEA decision” in regulation 2(1) of the 2016 Regulations largely replicates the definition in the 2006 Regulations, however, it makes it clear that an EEA decision does not include a decision to refuse to issue to an extended family member of an EEA national an EEA family permit, registration certificate or residence card as found in the judgment of the Upper Tribunal (Immigration and Asylum Chamber) in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC).

Appeals and rejection of an invalid application

In line with the definition of ‘EEA Decision’ in Regulation 2, an application that is rejected as invalid because it has not been submitted in accordance with the regulations will not provide a right of appeal as the decision to reject the application as invalid is not considered an ‘EEA decision’.

From 18 March 2016, the Home Office can retain an administration fee from in-country charged applications that are rejected as invalid. If an application is rejected in this way, the home office must refund the fee paid, minus a £25 administration fee.

Administrative removal papers:

The administrative removal papers are:

  • IS151A (EEA) – this tells the person about their immigration status and liability to detention and removal

  • IS151B (EEA) – this tells the person about their right of appeal from outside the UK against the decision to remove

  • IS151D (EEA) – this tells the person about the arrangements for their removal Service of the IS151B (EEA) gives a right of appeal in line with Regulation 36 of the 2016 EEA Regulations , and triggers a period of 14 days during which the person can appeal the decision to administratively remove (7 days for detained cases).

Appeal rights and effect of Sections 120 and 96(2) of the 2002 Act

If an EEA national or a family member of an EEA national is liable to deportation they must be notified in writing and given the opportunity to make representations, if they want to, about why they should not be deported.

When a person is informed of their liability to deportation, they must be advised of the public policy or public security reasons for their intended removal from the UK. The Home Office decision maker must also notify the person about any known ties to the UK, including their length of residence here, whether they have resided in accordance with the EEA Regulations 2016 and whether they have acquired a permanent right to reside. This information must be included so that the person has an opportunity to challenge any of these points and to enable the Secretary of State to make an informed decision which takes account of all relevant information. In the event that a subsequent deportation decision is appealed it is also intended to avoid new information coming to light at the appeal so that the appeal judge is, in effect, the first decision-maker.

The liability notice must also contain a warning under section 120 of the Nationality, Immigration and Asylum Act 2002, in accordance with paragraph 2 of schedule 2 to the EEA Regulations 2016. This places a continuing obligation to raise with the Home Office any reasons why they should not be deported from the UK including any time there is a material change of circumstances, as soon as they occur. Section 96(2) of the Nationality, Immigration and Asylum Act 2002 provides for the denial of a right of appeal in certain circumstances where a matter later relied on should have been, but was not, raised in response to a section 120 notice.

Appeal rights and regulation 36(7) certification:

Regulation 36(7)  provides that the Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (8) if it has been considered in a previous appeal brought under the Regulations or under section 82(1) of the 2002 Act. Regulation 36(8)  states that person may not bring an appeal under the Regulations on a ground certified under paragraph (7) or rely on such a ground in an appeal brought under the Regulations.

Appeals and fundamental interests of society considerations:

The EEA Regulations 2016 set out the government’s view of the fundamental interests of society in the UK in the context of the regulations. This is a statement about the types of interests, which if threatened, might provide legitimate grounds for removing or excluding an EEA national or their family member. The list is non-exhaustive.

Where a decision is taken to exclude or remove an EEA national or their family member on the grounds of public policy or public security in order to protect the fundamental interests of society, consideration must be given to whether the conduct of the individual represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Regulation 23(6)(b) of the EEA Regulations 2016 allows for the deportation of EEA nationals or their family members on grounds of public policy or public security. Any such decision must be made in accordance with regulation 27 of the EEA Regulations 2016. The UK government’s policy is to pursue the deportation of EEA nationals or their family members when the person’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

In line with regulation 24(2), a decision under regulation 23(6) to remove a person from the UK will (except during any period in which a right of residence is deemed to continue in line with regulation 16(2)) invalidate the following documents held by that person:

  • registration certificate

  • residence card

  • document certifying permanent residence

  • permanent residence card

  • derivative residence card

Also, any application made by that person for such a document where there has been a removal decision made under regulation 23(6) will invalidate that application. This means that a home office decision maker does not need to revoke a document held by a person in order to remove them from the UK. This is because any such removal will automatically invalidate that document.

Regulation 27 and schedule 1 of the EEA Regulations 2016 set out the principles to be considered when making a decision to refuse admission, exclude, refuse or revoke residence or remove an EEA national or their family member from the UK on grounds of public policy or public security. Regulation 27(5) requires that, where such a decision is taken, it must be in accordance with the following principles:

  • the decision must comply with the principle of proportionality

  • the decision must be based exclusively on the personal conduct of the person concerned

  • the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the individual and that the threat does not need to be imminent

  • matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision

  • the individual’s previous criminal convictions do not in themselves justify the decision

  • the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

The fundamental interests of society in the UK are set out in schedule 1 of the EEA Regulations 2016.

Having regard to Regulation 27(8), the EEA Regulations 2016 now require the courts or tribunals to take into account these interests when considering, for example, an EEA national’s appeal against a deportation decision. Consideration must be given to the fundamental interests of society to determine whether it is appropriate to restrict a person’s free movement rights on the grounds of public policy and public security. When making a decision, the home office decision-maker must list all the relevant fundamental interests which apply.

Appeal rights and marriage, civil partnership and durable partnership of convenience:

The EEA Regulations 2016 define a marriage or civil partnership of convenience as a marriage or civil partnership entered into for the purpose of using the 2016 regulations, or any other right conferred by the European Union Treaties, as a means to circumvent:

  • Immigration Rules applying to non-EEA nationals (such as any applicable requirement under the Immigration Act 1971 to have leave to enter or remain in the UK)

  • any other criteria that the party to the marriage or civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these regulations or the EU Treaties

A durable partnership of convenience, as defined by the EEA Regulations 2016, includes a durable partnership entered into for the purpose of using these regulations, or any other right conferred by the EU Treaties, as a means to circumvent:

  • Immigration Rules applying to non-EEA nationals (such as any applicable requirement under the Immigration Act 1971 to have leave to enter or remain in the UK)

  • any other criteria that the party to the durable partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these regulations or the EU Treaties

The important factor in a marriage, civil partnership or a durable partnership of convenience is that there is no genuine relationship between the parties.

Paragraph 6(a) of schedule 1 to the EEA Regulations 2016 states that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right where it involves entering or attempting to enter into a marriage, civil partnership or durable partnership of convenience.

Entering, or attempting to enter, a marriage, civil partnership or durable partnership of convenience for the purpose of circumventing the UK’s immigration controls is also considered contrary to the fundamental interests of society. As set out in paragraph 7(a) of schedule 1 to the EEA Regulations 2016. Where there are reasonable grounds to suspect a person with an EEA right has entered or attempted to enter a marriage, civil partnership or durable partnership of convenience, it may be appropriate to make a decision to refuse admission, refuse or revoke residence or remove.

In most cases, an appeal against refusal of an EEA residence card is likely to be non-suspensive (that is, it does not necessarily suspend removal), depending on the individual case circumstances. There may be additional factors to be taken into account. It is different to an appeal against a removal decision which will, in most circumstances, suspend removal.

Revocation of documents and appeal rights:

In line with regulation 24, the Secretary of State may revoke a document on the grounds of:

  • public policy, public security or public health

  • misuse of rights

  • the person has stopped having or never had a right of residence or permanent right of residence

If a person has a document revoked in line with regulation 24 of the EEA 2016 Regulations , they will have an in-country right of appeal against that revocation. There are some limited circumstances however, when the right of appeal will be out of country. These are, as follows, where the decision was to:

  • refuse to revoke a deportation or exclusion order

  • revoke, refuse to issue or renew any document where that decision was taken at a time when the relevant person was outside the UK

Appeal rights and the Regulation 32(6) 30days “Grace Period”:

Regulation 32(6) provides that a person subject to a deportation decision made under regulation 23(6)(b) is allowed one month(interpreted as 30 days) to leave the UK voluntarily, beginning on the date on which they are notified of the decision to remove them, before being removed pursuant to that decision. A person may be removed earlier:

  • in duly substantiated cases of urgency (for example if a prisoner was involved in prison riots)

  • where the person is detained pursuant to the sentence or order of any court

  • where a person has entered in breach of a deportation or exclusion order

The 30days begin on the date on which they are notified of the decision to remove by form IS151B (EEA), before enforced removal.During the 30day period and while any appeal against the decision to remove could be brought or is pending, the person cannot be removed from the UK.

Except for cases when a person should clearly be deported urgently or where the person is detained because of the sentence or order of any court. They must be allowed a period of one month to leave the UK voluntarily.

Appeals and Regulation 33 Certification:

An appeal against a deportation decision made under regulation 23(6)(b) of the EEA Regulations 2016 will suspend removal proceedings, unless the Secretary of State has exercised her discretion to certify removal. The Secretary of State can certify removal if the person’s deportation before the conclusion of any appeal proceedings would not give rise to a real risk of serious irreversible harm or otherwise be unlawful under section 6 of the Human Rights Act 1998. If removal has been certified, it will only then be suspended if the person subject to removal has made an application to the courts for an interim order to suspend removal proceedings (eg judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

The application of a regulation 33 certificate does not prevent a person from lodging an appeal from within the UK; rather, it limits the suspensive effect of that appeal. So, whilst a person may lodge an appeal in-country, the lodging of such an appeal does not suspend removal from the UK, provided the removal is certified.

Regulation 33 does not impact on the period allowed for voluntary departure, and a person liable to deportation pursuant to the EEA Regulations 2016 still has one month in which to leave the UK voluntarily before removal is enforced. The one month period to leave voluntarily will not apply in certain cases, including where the person is detained pursuant to the sentence or order of any court (regulation 32(6)(c).

Re-entry procedure to present appeal in person:

Article 31(4) of the Free Movement Directive (2004/38/EC) states that:

‘Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory’.

Regulation 41 reflects the requirements of Article 31(4), and establishes a process whereby a person who has lodged an appeal against a removal decision and who is outside of the UK may apply from outside the UK for permission to be temporarily admitted to the UK solely for the purpose of making submissions in person at their appeal hearing.

Relevant Home Office Policy Guidance:

  • Free Movement Rights: family members of British citizens, Version 2.0, 4 April 2017

  • Processes and procedures for EEA documentation applications,Version 5.0, 14 February 2017

  • Free movement rights: retained rights of residence, Version 3.0, 7 February 2017

  • Removals and revocations of European Economic Area (EEA) nationals, Version 2.0, 1 February 2017

  • EEA decisions on grounds of public policy and public security, Version 1.0, 1 February 2017

  • Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016,  Version 5.0, 1 February 2017

 

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